LEGISLATORS PER DIEM
Members of the Legislature can be paid per diem pursuant to the provisions of Senate Bill No. 375, First Session, Thirty-fifth Oklahoma Legislature, and such provisions are not inconsistent with Attorney General Opinion No. 72-301. Per diem allowance to legislators in connection with official duties is not compensation within the meaning of Article XXIII, Section 10 of the Oklahoma Constitution and could, therefore, become effective the Second Session of the Thirty-fifth Legislature. This is to acknowledge receipt of your opinion request wherein you ask, in effect, the following questions: 1. Whether, under Opinion No. 72-301 a member of the Legislature can be paid per diem for staying in Oklahoma City as recommended by the Special Commission on Legislative Expense Allowance? 2. If the answer to the first question is in the affirmative, could such allowance become effective during our present term of office? Opinion No. 72-301 construed the provisions of Title 74 O.S. 500.4 [74-500.4] and 74 O.S. 500.7 [74-500.7]. In response to the question of whether an elected state official can legally make claims for and/or receive payment for travel and per diem from his place of residence outside of the capitol city to his office at the State Capitol, the opinion held in the negative, stating that the language of the statutes does not contemplate such reimbursement. However, in specific response to your inquiry, Senate Bill No. 375 of the First Session of the Thirty-fifth Oklahoma Legislature amended 74 O.S. 456 [74-456] (1971), to read as follows in Section 2: "Members of the Legislature shall be allowed a per diem in lieu of expenses in the amount of fifteen dollars ($15.00) for each night spent away from home in the performance of their official duties within the state during regular legislative sessions, not to exceed four (4) legislative days per week." The above legislative expression is not inconsistent with the holding of Attorney General Opinion No. 72-301. As to your second question, the case of Spearman v. Williams, Okl., 415 P.2d 597 (1966), is dispositive of the issue. The Court in Syllabus 4 stated: "Unless the contrary is clearly expressed in the Constitution the allowance of reasonable expenses incurred in the discharge of the official duties of an office is neither salary, compensation nor an emolument of the office within the purview of a constitutional prohibition against a change in compensation during the term." The Court's construction of the meaning of the term "compensation" as used in Article V, Section 21 of the Oklahoma Constitution, relating to State Legislators, clearly excludes allowances paid to members of the Legislature for reimbursement of expenses in connection with official duties, from the compensation paid such members. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: Members of the Legislature can be paid per diem pursuant to the provisions of Senate Bill No. 375, First Session, Thirty fifth Oklahoma Legislature, and such provisions are not inconsistent with Attorney General Opinion No. 72-301. Per diem allowance to legislators in connection with official duties is not compensation within the meaning of Article XXIII, 10, of the Oklahoma Constitution and could therefore, become effective the Second Session of the Thirty-fifth Legislature. (Nathan J. Gigger)